R v Sleiman - [2003] NSWCCA 231

No judgment structure available for this case.

CITATION: Regina v Emad Sleiman [2003] NSWCCA 231

HEARING DATE(S): 6/11/02;2/12/02;17/2/03;18/2/03;19/2/03

JUDGMENT DATE:
21 August 2003

JUDGMENT OF: Sully J at 1; Dunford J at 91; Kirby J at 92

DECISION: Appeal against conviction dismissed.

LEGISLATION CITED: Evidence Act 1995 (NSW)

CASES CITED: Mickelberg v The Queen (1989) 167 CLR 259 at 273
R v PLV (2001) 123 A Crim R 194
R v Bikic [2002] NSWCCA 227
Gilbert v The Queen [2000] CLR 414
McClean v Commonwealth of Australia, unreported, 27 June 1996
Regina v M [2002] NSWCCA 66
Ratten v The Queen (1974) 131 CLR 510
Lawless v The Queen (1979) 142 CLR 659
Gallagher v The Queen (1985) 160 CLR 392
R v William Woodcock (1789) 1 Leach 500; 168 ER 352
R v Salama [1999] NSWCCA 105
R v Rose (2002) 55 NSWLR 701

PARTIES :
Regina
Emad Sleiman

FILE NUMBER(S): CCA 60505/99

COUNSEL: P. G. Ingram - Crown
P. Kintominas - Appellant

SOLICITORS: S. E. O'Connor - Crown
Kekatos Lawyers - Appellant

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70216/98

LOWER COURT
JUDICIAL OFFICER : Sperling J

60505/99

SULLY J
DUNFORD J
KIRBY J
Thursday 21 August 2003

REGINA v EMAD SLEIMAN

Judgment

1 SULLY J:

Introduction

2 At the conclusion of the Crown case, Sperling J directed the acquittal of Mr. Kalache. The joint trial of the appellant and Miss Cassar continued to verdict. The jury found each of them guilty as charged.

3 The appellant was subsequently convicted and sentenced to a substantial term of imprisonment. He now appeals against that conviction. He does not apply for leave to appeal against sentence.

The Crown Case at Trial

4 Shortly after 4.00 a.m on Sunday, 18 May 1997, Jason Burton was stabbed fatally. The stabbing took place outside the General Bourke Hotel at Parramatta. The essence of the Crown case at trial was that the fatal wounds had been inflicted by the appellant, and with intent either to kill or to inflict grievous bodily harm.

5 Fundamental to the Crown case was evidence given at trial by Mr. Adam Stacey who had been employed, at the relevant time, as security manager at the General Bourke Hotel. The written summary of trial lodged by the Crown in connection with the present appeal contains a convenient and comprehensive survey of the evidence given by Mr. Stacey. That evidence is significant in connection with two in particular of the grounds of appeal; and it provides the essential factual background of all of the grounds of appeal. It is, therefore, expedient to reproduce the summary, which is:

Adam Stacey

A couple of hours later Mr. Stacey was standing at the top of the stairs and turned to witness Brick Bolan being hit in the face by Michael Ibrahim. Mr. Stacey came between the two people involved and pulled them apart. He asked Mr. Bolan to come out to the front area with him. He brought Mr. Bolan to the beer garden area near the front door entrance. Mr. Stacey said that he was standing in the beer garden with his back towards the bar and facing towards the taxi rank area and the outskirts of the nightclub. Mr. Bolan was sitting facing toward the bar area. Mr. Stacey was looking to his left when he saw the deceased leaving the club with the group. Kalache was alongside him. The Appellant, Yassar, Younan, Michael Ibrahim, Michael Ibrahim’s cousin and a couple of other guys were in the group that left with the deceased.

He saw the group walking down to the grassed area near the taxi area. Mr. Stacey watched the deceased walking down towards the tree area with Kalache. He noticed the deceased walk ahead and turn back looking towards the club. He noticed Kalache push the deceased. The deceased was facing Mr. Stacey and the nightclub. Kalache was facing away from him towards the trees. The Appellant was to Kalache’s right. Younan, Yassaar, Ibrahim and the other guys were all on the grass area within about ten feet.Then the Appellant came across from Kalache’s right and lunged forward at the deceased and hit him in the chest. The Appellant was standing in front of the deceased and slightly to his left when he lunged at the deceased. Mr. Stacey indicated that the Appellant hit the deceased with two jabbing type motions. He then saw the deceased run back towards the nightclub. He saw Kalache and the Appellant start running off to the right towards the carpark and he saw Kalache pick up a knife off the ground on the grass area. In examination-in-chief Mr. Stacey said that this was the first time he saw the knife. However, in cross-examination Mr. Stacey said that he in fact first observed the knife when the Appellant turned toward him after he had lunged at the deceased. He observed a large silver bladed knife in the hand of the Appellant. He had told the police this in his statement of 20 December 1997.”

Mr. Stacey saw the deceased come back into the hotel where he was helped by staff into the foyer area. Mr. Stacey came in contact with the deceased when he arrived at the bottom of the stairs and he brought him over to the seat area in the entrance foyer. He noticed blood coming from a hole in his stomach. He sat him down and the deceased said to him, “I’m going to die Ad, I’m going to die”. Mr. Stacey said “Don’t be silly, you’re not going to die. Don’t be silly man.”. Mr. Stacey continued to comfort the deceased and he said “Do you know who did this to you?”. The deceased replied, “That wog cunt Kalache”. The deceased’s eyes started rolling back and he started losing consciousness, he felt he had no or a very weak pulse. He lifted up his shirt further and that’s when he noticed he had another wound. He started giving him mouth to mouth resuscitation. The police arrived when he was still giving CPR and the ambulance arrived after that.

Mr. Stacey was shown a video of still photographs in December 1997 from which he identified the Appellant as the person who stabbed the deceased. He was shown the hotel security video from which he identified the various persons he saw that night including the Appellant. Mr. Stacey described the Appellant as having short hair with a rat’s tail several inches long at the back of his hair. He described the Appellant to police as being of Lebanese appearance; about 18 years old, five foot nine; thin build; olive complexion; short black hair with a long rat’s tail; string of hair trailing down from the back of his head; makings of a moustache and wearing a Jag Man T-shirt and black jeans.

Mr. Stacey said that he did not tell the police that he saw the deceased being stabbed on 18 May because he feared for his life and that of his family. Younan and Ibrahim had come back into the nightclub and were standing around as the deceased was taken out of the hotel. Ibrahim looked at him in such a way that frightened him. He was fearful of the Ibrahim family because they had a reputation for being aggressive.

In re-examination Mr. Stacey gave an explanation for his delay in telling the police the true account of his observation on 18 May until 20 December 1997. He said that he feared for his life and that of his family. He gave evidence of a number of incidents that occurred immediately after 18 May which made him feel threatened.

Mr. Stacey said that when he finished work at 1 am on 19.5.97 he was followed in his vehicle by another vehicle which was occupied by four men of Lebanese appearance. The vehicle followed him for a considerable distance, tail-gating him and chasing at high speeds. He only managed to lose the vehicle by going the wrong way up several one way streets.

The following afternoon when he was getting out of his car in the car park at the General Bourke Hotel he was approached by a large Lebanese man. He asked him what he knew about the murder, he told him that he knows who he is and who his family are. He told him that if he “don’t keep my fucking mouth shut, I’m dead”. He had a gun which he put towards Mr. Stacey’s head. As he walked away Mr. Stacey reached into his car and a second large Lebanese man said, “Don’t do anything foolish”.

Mr. Stacey said that within a week of the stabbing, a neighbour told him that she saw a large, European man with a moustache and billy goat beard knocking on the front door of his house. He asked the neighbour where Mr. Stacey was and when he would be home. Some other neighbours told him that they had seen a white car parked near his place for several hours. The car was occupied by men of Lebanese appearance.

Mr. Stacey gave evidence of nuisance telephone calls to his home notwithstanding a change of silent number. A telephone call was also received at work several weeks later. He had not received nuisance calls prior to the stabbing.

Mr. Stacey said he used to see a tow truck operated by the Kalache family parked outside and in the vicinity of the hotel all the time. He hadn’t previously noticed the tow trucks parked there prior to the stabbing.

Mr. Stacey gave evidence that as a result of these incidents he didn’t feel safe any more. He moved to Parramatta so he would be close to work. He sold his car and took taxis. He changed jobs so that he was more internal security and not at the hotel door.(sic) His health was affected and he had to take medication for his high blood pressure. He spoke to Garry Buckley on 6 and 13.12.97. Mr. Stacey made a statement to police on 20.12.97 in which he told them everything that he knew as best he could. He decided that it was time he told the police exactly what happened because of the harassment and threats and the guilt of not coming forward.” [transcript references have been omitted]

6 In addition to the direct eye-witness evidence of Mr. Stacey, the Crown led a circumstantial evidence case. It was constituted, speaking broadly, of:

[1] A body of eye-witness evidence about an altercation which had occurred inside the hotel, and between the appellant and the deceased. This incident had occurred shortly prior to the fatal stabbing of the deceased.

Paul Hammond

Mr. Hammond described the person who fell to the ground as being about 5’ 8” in height, wearing jeans and a brown to fawn shirt which appeared to be chequered. He had short brown hair. He described the person who did the striking as having a slight build, with black hair cut fairly short on the sides but wavy on top. He thought he possibly had a goatee. He was wearing a white top with stripes on each sleeve. In cross-examination he said that the sleeves were long and the stripes were possibly red and blue.

Mr. Hammond was shown the video of identification photographs in January 1998. Mr. Hammond thought that the photograph of the Appellant looked like the assailant. He also thought that the photograph of another man looked very similar to the assailant. Mr. Hammond was shown the video tape of him leaving the General Bourke Hotel. He said that the person behind him was in a hurry and that he went towards Anderson Street. He said that that person was the same person who was involved in the first altercation (the Appellant).

Mr. Hammond remained speaking to the people for five to ten minutes when he started to move off. He was standing in the car park when he saw two males and a female move out of some bushes that used to be on the grassy patch alongside the footpath near Anderson Street. They were walking toward a vehicle. The driver of that vehicle turned and called to the person who was involved in the confrontation to get a move on. He was still standing in the same position as the time of the fight and looking a bit stunned. He got in the front passenger seat of the car. They were speaking to each other in English and Lebanese. He described the car as being a light silvery grey colour. He said it could have been a Mazda 323, a Laser type car or perhaps a Mitsubishi Colt.

After those people left the scene he saw a second altercation between two different people. He heard someone yell out, “Why did you stab my friend?”. That person was then punched in the head. The person who got punched said, “I don’t want to fight you. I just want to know why your mate stabbed my friend”. He said that the head doorman then grabbed the person who was hit.” [transcript references have been omitted.]

4.01.29 a.m. Mr. Bolan and Mr. Stacey moved towards the garden area of the Hotel.

4.02.21 a.m. The deceased and Hassan Kalache leave the Hotel.

4.02.49 a.m. The appellant and Mr. Hammond leave the Hotel.

4.03.04 a.m. . Mr. Irbrahim leaves the Hotel.

4.03.39 a.m. The deceased, obviously injured, re-enters the Hotel.

4.03.59 a.m. Miss Cassar leaves the Hotel.

4.07.16 a.m. Mr. Budd leaves the Hotel

4.09.23 a.m. Mr. Budd re-enters the Hotel.

4.09.43 a.m. Mr. Ibrahim re-enters the Hotel.

[4] Evidence of a lie told by the appellant, and evidencing, so the Crown contended, consciousness of guilt.

The lie was told by the appellant to Detective McNab on 8 January 1998, following his arrest. The appellant, declining to be interviewed electronically, said: “I didn’t have anything to do with it nor did my missus. We weren’t even there.”.

[5] Medical evidence of the nature and location of the stab wounds.

There were two such wounds to the deceased’s chest and abdomen. It would have required moderate force with a sharp knife in order to inflict such wounds. The wounds were consistent with their having been inflicted in fairly rapid succession with the deceased in, roughly, the one position.

There was evidence of a number of bruises and abrasions, seemingly fresh, to the deceased’s head and face. The deceased had, upon autopsy, a blood/alcohol reading of .208. There was no medical evidence of any other substance abuse.

[6] Evidence respecting a Mitsubishi Colt hatch-back motor vehicle registered number MTD.281.

This vehicle was bought by the appellant from one Joseph Rizk on 29 April 1997.

On 17 December 1997 the appellant had a conversation with Mr. Rizk about this motor vehicle. Mr. Rizk told the appellant of a conversation which he had had with the investigating police in connection with the vehicle. The appellant said to Mr. Rizk: “How come you told them you gave me the car?” and “just tell them it was stolen” . This conversation was tape-recorded.

On 19 May 1997 the vehicle was virtually destroyed by fire.

[7] Evidence which the Crown asserted to be evidence of flight evidencing consciousness of guilt.

The appellant and Miss Cassar went to Melbourne on 22 May 1997, using tickets purchased by Miss Cassar on 20 May 1997. Between 2 June 1997 and at least 21 July 1997 they lived in Melbourne, using for much of the time an assumed name. They subsequently returned to Sydney.

[8] Evidence of lawfully intercepted telephone conversations to which the appellant was a party. The conversations took place in December 1997.

On 4 December 1997 the appellant was recorded saying in a conversation with Leanne Cassar: “The night, the night I stabbed that bastard to death” .

On 13 December 1997 the appellant was recorded as saying to Miss Cassar: “They’ll find us guilty” . Miss Cassar says later in the same conversation: “You’ll do two years more than me, whatever you get you get two years more than me” . The appellant is recorded as saying: “If they’re coming here it’s going to be life” .

“I’ll go and take the rap alright Leanne”

“I’ll take the rap for you Leanne”

7 No murder weapon has ever been recovered by the investigating police.

The Directed Acquittal of Hassan Kalache

8 The direction was given by Sperling J on 7 May 1997. On 9 June 1997 his Honour published written reasons for the directed acquittal. It is sufficient for present purposes to quote paragraphs 8 through 13, which expose with complete clarity his Honour’s process of reasoning:

“8 The evidence at its highest – according to the Crown Prosecutor’s submissions – was as follows:

(a) Mr. Kalache arrived at the General Bourke Hotel with others, including Mr. Sleiman.

(b) Mr. Kalache, with another member of the group, was directly involved in an altercation with the deceased in the toilets.

(c) Mr. Kalache was present in the group when Mr. Sleiman became involved in an altercation with the deceased.

(d) Mr. Kalache approached the deceased and induced the deceased to leave the hotel with him.

(e) Mr. Kalache and the deceased were followed by other members of the group, including Mr. Sleiman.

(f) Mr. Kalache and the deceased walked onto the grassed area in front of the hotel, followed by others in the group.

(g) an incident then occurred which involved the deceased and others moving over an area on both sides of two trees located in the grassed area.

(h) The deceased was, at some stage during the incident, pushed on the shoulder by Mr. Kalache, assaulted by one or more of the group (causing contusion and abrasion injuries to the face, head and hands), and was fatally stabbed in the chest and upper abdomen.

(i) Shortly after the incident, the deceased was asked who did it. He replied that it was Mr. Kalache. This was not relied upon by the Crown as evidence that Mr. Kalache stabbed the deceased. (That concession by the Crown – if it be a concession – was rational, proper and appropriate. I do not believe the Crown had the alternative open to it as a practical matter.) The Crown relied on the deceased’s statement as evidence that Mr. Kalache was present and participated in the assault on the deceased to a significant degree.

(j) Immediately following the incident, Mr. Kalache picked up the knife which had fallen to the ground.

(k) Mr. Sleiman and Mr. Kalache ran from the immediate scene.

(l) Mr. Sleiman and Mr. Kalache (with another or others) entered Mr. Sleiman’s motor vehicle, which was parked in the street nearby, and drove off.

(m) When interviewed by the police, Mr. Kalache said, untruthfully, that he was not there at the time and did not know that Mr. Sleiman was there.

9. Counsel for Mr. Kalache submitted that there was no evidence of some of these factual matters. I assumed, without deciding that there was.

10. On those facts, there was no evidence of agreement (express or implied) between Mr. Kalache and any other or others to injure the deceased with the specific intent required to constitute murder or by an unlawful and dangerous act so as to constitute manslaughter. Therefore, there is no evidence of “straightforward joint criminal enterprise”.

11. As to “common purpose”, I assumed, without deciding, that there was evidence of agreement to commit a “foundational crime”, namely assault. However, there was no evidence that Mr. Kalache contemplated, as a possible incidence in the execution of the enterprise to commit that crime, that the crime of murder or manslaughter might be committed by one or more of the group in the way that occurred or in any cognate manner.

12. There was no evidence that Mr. Kalache knew that anyone in the group had a knife. There was no evidence that Mr. Kalache would have contemplated that a knife might be produced and used.

Anderson and Morris

Duong, Lu Do & Tran

9 The effect of the directed acquittal is, of course, that Mr. Kalache cannot be re-charged with, and re-tried for, the murder of the late Mr. Burton.

The Appellant’s Case at Trial

10 The appellant did not give evidence. He did call, however, three witnesses. Two of these, Miss Cassar and Mr. Mahmoud Sleiman, were called as witnesses to the appellant’s movements on 18 May 1997.

11 The remaining witness, a Mr. Morgan, was a neighbour of the appellant. He was called to give evidence of having notified the appellant, at some time prior to 31 December 1997, of having seen persons, whom he believed to be police officers, in the vicinity of the appellant’s home. Mr. Morgan allegedly warned the appellant that either he was being watched by the police, or his home was being bugged. It was the appellant’s case that, because of this notification, he was not likely to have been making incriminating statements of the kind alleged by the Crown.

12 The Crown’s written summary of the trial provides the following overview of the evidence of Miss Cassar and of Mr. Mahmoud Sleiman:

Leanne Cassar

On the evening of 18.5.97 she attended the General Bourke Hotel at about 1.30 am with the Appellant, Hassan Kalache and Mahmoud Sleiman. Mahmoud Sleiman drove them there after they had been at Studebaker’s nightclub. They met some people of Lebanese nationality in the hotel. She observed that the Appellant’s demeanour was normal and that he showed no aggression toward anybody. She observed Michael Ibrahim have an argument with another man. She said that the Appellant left the hotel shortly before 4 am because he was going to see if Mahmoud Sleiman was outside. She understood that the Appellant had asked Mahmoud to pick them up prior to leaving the hotel. Shortly after the Appellant re-entered the hotel. He told her to hurry up because Mahmoud was waiting outside. She told him she would just finish here and he left again. She finished her conversation and went to collect her bag from the cloakroom.

Miss Cassar saw a man who she now knew to be the deceased running up the stairs as she was leaving the hotel. He looked like he was either about to get involved in a fight or he had been involved in something. She walked to the grass verge in Anderson Street and saw the Appellant talking to someone. When he finished talking he told her that Mahmoud was giving them a lift home. They walked across the road together. Hassan Kalache and Mahmoud were at the car. They all got in the car and left with Mahmoud driving. The Appellant’s demeanour was normal. Mahmoud Sleiman drove them to their flat at Merrylands. She described the car he drove as a small car that could have been a Laser.

Ms Cassar gave evidence that she appeared at Goulburn Local Court on 23.4.97 on criminal charges when she received advice from a Legal Aid solicitor that there was a big chance that she was going to get a prison sentence. She said she was due to enter a plea in relation to that matter on 21.5.97. Although she went to Goulburn she did not attend court because she was scared of going to gaol. She returned home the following day and asked the Appellant whether he would leave New South Wales with her. She booked two bus tickets to Melbourne. She did this because she had failed to appear at Court and stopped reporting to police. She thought that there would be a warrant for her arrest and that the police would be looking for her.

When they arrived in Melbourne they stayed with the appellant’s uncle for about two weeks. She then leased premises at 759 Sydney Road, Coburg under a false name.

Miss Cassar gave evidence that they returned to live in Sydney after she had made contact with police about her legal problems. They returned to live in the flat in Merrylands. At that time she heard street talk that Michael Ibrahim was saying things about the Appellant being involved in the murder of the deceased and she believed that he was trying to set him up

Miss Cassar agreed that the voice on the conversations recorded by listening devices was hers. She gave explanations for any references to the murder as being consistent with her belief that the Appellant had nothing to do with the murder but that he was being set up for it.

Miss Cassar said that she believed that the police were listening to their telephone conversations as of 4.12.97 because there were clicking noises and a lot of static on the telephone. She also gave evidence of a conversation she had with a neighbour, Mr. Morgan, which led her to believe that the police had ‘bugged’ the telephone.

Miss Cassar said that both she and the Appellant were smoking heroin every night from 4 December up until Christmas. She said that where the Appellant’s voice is recorded on the intercepted conversations he had been using drugs.

Miss Cassar said that she could not recall whether the Appellant had a beard as at 18.5.97 but that he did not have a rat’s tail at that time. She said that he had one but that he had it cut off three months earlier. He did not start re-growing it until they moved to Melbourne.

Mahmoud Sleiman

Mr. Sleiman said that he left the hotel just before or just after 4 a.m. He had the Appellant, Hassan Kalache and Leanne Cassar in the car. He didn’t see the Appellant with a knife at any stage during that evening. Nor did he see blood on the Appellant’s clothing when he joined him from the hotel. He didn’t see a scuffle or argument inside the hotel. Nor did he see a fight or anything to attract his attention when he was waiting in or about his car. They drove straight to the Appellant’s house which took about ten or fifteen minutes. Mr. Sleiman said that he did not have anything alcoholic to drink at the nightclub or at the hotel that evening.

Mr. Sleiman was cross-examined about his car. He said that he purchased the car from Cyril Mansour. He registered the car in his sister-in-law’s name. He had the car for about four or five months and then he sold the vehicle to Anthony Younan. He had the car for about two months on 17 May 1997. Mr. Sleiman agreed that the police had asked him about a blue Ford Laser SLN 660 and he had told them that he had sold it to Anthony Younan and that Belinda McNeill owned the vehicle and he used it from time to time. Mr. Sleiman looked for the paperwork relating to the vehicle but was not able to locate it. He couldn’t recall if the registration number of that vehicle was SLN 660 but that the number looked familiar. He denied that the Laser he gave evidence about could have been at The Entrance on 17 and 18 May 1997 as he had been driving it that night.

He thought that the Appellant had a rat’s tail hairstyle on 17 and 18 May 1997 but he wasn’t sure. He never saw the Appellant with a small blue car and he had no knowledge of a Mitsubishi Colt.” [transcript references have been omitted.]

The Crown Case in Reply

13 The Crown called in reply a body of evidence of which it is sufficient to say here that, if accepted, the evidence proved that the motor vehicle said by Mr. Mahmoud Sleiman to have been driven by him on 17 and 18 May 1997 was not owned by him at that time; and could be located, moreover, at The Entrance throughout those two days.

The Grounds of Appeal

14 As notified, and argued, these are:

“1. His Honour misdirected the jury as to the dying declaration of the deceased.

2. The trial miscarried as a result of the admission of the evidence of Sgt. Garry Buckley.

3. His Honour erred in law in failing to leave manslaughter to the jury.

4. The conviction of the appellant is unsound having regard to the confession made since the trial by the co-accused Hassan Kalache to the murder; there being at least a significant possibility that the jury acting reasonably, had this evidence been before it, would have acquitted the appellant.”

15 At the hearing of the appeal the focus of the submissions for the appellant was very much on Ground 4. It is, therefore, convenient to deal first with that ground.

Ground 4: The Affidavit Evidence

· Hassan Kalache: 10 October 2002

“1. On 18 May 1997 I stabbed Jason Burton twice with a knife to the abdomen outside the General Bourke Hotel.

2. Jason Burton died as a result of the injuries he sustained.

3. I was charged with the murder of Jason Burton and stood trial before his Honour Justice Sperling and a jury of 12 and at the conclusion of the prosecution evidence his Honour directed the jury to find me not guilty of the murder.

4. I have not been prepared in the past to give evidence about what occurred on the night of the murder but I have come to the decision that the truth should be told.”

It seems that an affidavit in this form was in fact sworn on 21 August 2002; but that it was re-sworn upon the advice of counsel and in order to correct some typographical errors.

· Ross Hill: 17 February 2003

“2. On either the day of the Verdict being handed to Hassan Kalache, the Co-Accused, or the day after, I was approached by Hassan Kalache outside the Supreme Court at Darlinghurst in the Carpark where he said to me words to the effect:

He said:

“Emad didn’t do it.”

I said:

“Well who did it then?”

He said:

“I can’t tell you who did it, but I can tell you Emad didn’t do it.”

I said:

“If you know who did it you should tell me.”

He said:

“All I can say is that Emad didn’t do it.”

3. I did not act on comments made by Hassan Kalache as I believed that he did not tell me anything that could assist me. I formed the opinion that he would not be of any assistance as a witness.”

· Jim Kekatos: 29 November 2002

Mr. Kekatos is the current solicitor for the appellant.

Mr. Kekatos, according to this affidavit, first received instructions in about April 2000. The instructions came from a Mr. Fadi Sleiman, a brother of the appellant, and an established client of Mr. Kekatos. The appellant’s file did not actually come into the hands of Mr. Kekatos until early August 2000.

According to Mr. Kekatos, the present appeal made glacial progress until June 2002. The reason for that was, put very simply, that the appellant wished to pursue certain grounds of appeal which, in the professional judgment of his counsel, had no prospect of success; and which involved the making of some very serious allegations which could not be buttressed, in counsel’s professional opinion, by credible evidence.

“24. On 6 June 2002 I visited Hassan Kalache at Silverwater Gaol. I had a conversation with him consisting of words in or to the effect:

I said:

“What do you want?”

He said:

“I want to give evidence on behalf of Emad.”

I said:

“What do you want to say?”

He said:

“That I did the stabbing.”

I said:

“Can you prepare a Statement for me setting out what happened?”

He said:

“No I cannot you prepare it and I will sign it.”

I said:

“What do you want to say, can you give me a description of what happened?”

He said:

“I don’t know, just that I stabbed him and I want to tell the truth about what happened.”

I said:

“I will prepare it and get you to sign it.”

He said:

“If I give the Statement, will I be charged for it?”

I said:

“I don’t think so, you will need to get advice from your Solicitor.”

He said:

“I better not get charged if I give the Statement.”

I said:

“I don’t think you will.”

“On both occasions he said to me:

“Will I be charged or get in trouble for now admitting to the murder?”

I said:

“No I do not think so but you should get your own advice.”

He said:

“I hope not, I am relying upon what you say.”

The three affidavits thus far mentioned were the whole of the affidavit evidence tendered by the appellant.

· Althea Houlton: 21 October 2002

“2. The facts are that early in the evening of Saturday 1 July 2000 the deceased, Wassim Chedade, was at home in the company of his mother, three brothers and a friend, Hassan Yassine, at Granville. During this time the deceased had received several phone calls from the offender, following which the deceased suggested to the others that they go out. At approximately 5.30 pm, the deceased left the house and travelled in the family car, with his two brothers Mohamed and Samir, who were fifteen and eighteen years of age respectively, and Yassine.

3. There was evidence presented in the trial that the offender and the deceased had known each other for many years, as they had grown up in the same area within the same cultural and ethnic group. They had been to school with each other and had often “hung around” in the same group.

4. The offender’s evidence was that he had asked Wassim Chedade to pick him up earlier in the day. The deceased had in fact picked the offender up earlier that day at Yennora, where the offender had been with his brother, and brought him home.

5. The four young men headed to Mona Park at Auburn, from whence the offender had requested he be picked up. Samir Chedade drove the red Commodore sedan, the deceased sat in the front passenger seat, Mohamed Chedade sat behind the deceased, with Yassine behind the deceased (sic: ? driver). When they arrived at Mona Park there was no one present and, at the deceased’s instruction, they drove off. Within a few minutes of doing so the deceased received a call on his mobile phone and he directed that they return to Mona Park.

6. When they arrived at Mona Park there were three men, the offender, Aimen Chami and Moustafa Abbas standing at the perimeter of the park, near the intersection of Mary Street and Chisolm Street. Samir Chedade parked the car in a parking bay on Mary Street adjacent to the park, whereupon the three men approached the car. Aimen Chami leant up against the perimeter fence of the park and thereafter took no part in the events which ensued.

7. The offender approached the passenger side of the car and said to the deceased:

“Wassim, let’s go for a walk.”

Initially the deceased was reluctant to get out of the car but after a short time he opened the door and stood up, whereupon Moustafa Abbas punched him in the face causing him to fall back into the car. Abbas punched the deceased again, and continued to punch the windows of the car, smashing the rear passenger window. He also kicked the panels of the car.

8. At this point the offender reached in the waist of his pants and pulled out a handgun, which he raised and pointed into the doorway of the car at an angle and commenced shooting at the deceased, discharging five bullets into the left side rear of the deceased’s body. Samir Chedade drove off in haste as the offender continued to discharge rounds into, and in the direction of the car.”

· Catherine Anne Williams: 30 October 2002

· Detective Sergeant Ian McNab: 4 November 2002 [1]

Detective Sergeant McNab is the police officer-in-charge of the case of Mr. Burton’s murder.

This affidavit points to an interesting coincidence between the actions of the appellant following the murder of Mr. Burton; and to the actions of Hassan Kalache following the murder of Mr. Chedade. As previously noted herein, the appellant and Miss Cassar travelled to Melbourne very shortly after the killing of Mr. Burton. They stayed initially with an uncle of the appellant; and thereafter rented accommodation in a Melbourne suburb.

· Detective Sergeant Ian McNab : 4 November 2002 [2]

This affidavit explores two topics: first , a comparison of the prison visitor records of the appellant and of Hassan Kalache; and secondly , the detention of the appellant and of Hassan Kalache in the same prison.

On the second of these topics, the relevant records show that from time to time the appellant and Hassan Kalache have been detained in the same prison. In particular, they were so detained at Goulburn between 5 July 2002 and 4 September 2002; and again between 30 September 2002 and 4 November 2002.

Ground 4: The Oral Evidence

16 Four witnesses gave oral evidence as part of the appellant’s case before this Court. They were: the appellant; Hassan Kalache; and the appellant’s current and former solicitors, Mr. Kekatos and Mr. Hill, respectively.

· The Appellant

The appellant’s evidence-in chief concerning the stabbing of Mr. Burton was brief. He said that he had walked out of the Hotel shortly after Mr. Burton had done so. He did not see the actual stabbing. He did not see, or in any way handle, a knife. He realised, shortly after the stabbing, that it had occurred. This realisation came from seeing Mr. Burton “run off” .

“Q. Did you, at any stage, tell your nephew Hassan that he should come forward and tell the truth?

A. No.

Q. Why not?

A. Umm – when it first happened, when we had the trial because he beat it, and there was no need for him to do anything, he got out, he thought I would get out as well.

Q. You say you thought you would get out?

A. Yes, because I was not the one that done it, and he thought there was no way I would get found guilty, because I never done it.

Q. Is this something he has told you?

A. That is something – it has been a while, I cannot remember how many times I have spoken to him – I do not get to run into him much where I am.”

The appellant denied any concoction, or any opportunity for concoction, between himself and Hassan Kalache; and he explained, but in a way which need not be detailed here, his successive instructions to vacate successive fixtures of the hearing of the present appeal.

The appellant was cross-examined in careful detail. It will be necessary to refer, presently, to some aspects of that cross-examination.

Before doing that, it is useful to note some particular matters as to which the appellant might have been expected to give clear and credible evidence.

The first such matter was the appellant’s version, now, of what happened in the immediate lead-up to Mr. Burton’s death.

The second such matter was the appellant’s version, now, of when he had first become aware that Hassan Kalache had done the fatal stabbing.

The third such matter was the appellant’s explanation of any delay between the time of his first becoming so aware, and the time of his first challenge, based upon that knowledge, to his own conviction for the murder of Mr. Burton.

As to the first matter

“COUNSEL (INGRAM): Q. I would ask you to concentrate your mind back to the night that you were at the General Bourke Hotel, as you say you were. You went outside and you saw something happen outside, involving the man Mr. Burton?

A. Yes.

Q. Beginning from when you left the hotel, would you say, please, what it is that you saw involving whom, where, when and how it happened?

SULLY J: Take it in stages. When you, yourself, walked out of the hotel were you alone or in company?

A. I was alone.

Q. Where was Kalache?

A. He was in front of me with Jason.

Q. How far in front?

A. Oh, they walked out of the club and I was still inside and it would have been about 10 seconds later, or maybe a bit more, I walked out and --

Q. Where did you first go when you walked out?

A. I walked out and I walked to the right towards the motel across the road.

COUNSEL (INGRAM): Q. That is up towards Anderson Street, isn’t it?

A. I don’t know.

Q. Up towards the corner of the park?

A. Yeah, next to the carpark as well, the little carpark. The club carpark.

Q. Between the club carpark and the corner at which the two streets intersect on which corner the pub is located, as you have put it, is that correct?

A. Yes.

Q. And at the time that you went out through the doorway of the hotel on this occasion were you then able to see the two people, Kalache and Mr. Burton?

A. Yeah, they were about 10, 15 metres away.

Q. Where were they in relation to things in their immediate area?

A. Um, under the trees where there used to be a couple of big trees but they cut them down after.

Q. Where were you when you saw them in that position?

A. I was still walking down.

Q. Towards?

A. Them.

Q. And how far was it between you and them when you saw the, as you put it, between the trees?

A. They was still walking down towards the trees further down, and when they got there I was about from here to the chairs away.

Q. By “the chairs”, do you mean those blue chairs?

A. Yes, the blue chairs on the other side.

Q. To your eye is that a distance of something to the order of perhaps 10 metres or thereabouts?

A. Yeah, bit more, yeah.

Q. Pardon?

A. About that.

COUNSEL: (KINTOMINAS) I think he said a “bit more”

COUNSEL: (INGRAM) Do you think it was closer to about 12 metres, to your eye?

A. Yes.”

******

Q. How close were the people?

A. Um, a couple of metres away.

Q. When you say “a couple”, do you mean two or three or do you mean more?

A. No more than five metres. There was a lot of drunk people around.

Q. Were any of those people that you have described in the last couple of answers, people who were in company with you? That is, part of any group of which you were a member there that night?

A. No.

Q. Were any of them part of a group of which the man Hassan Kalache was there, that night?

A. The people that me and Hassan were with, that went to the club with was myself, Hassan, my then wife Leanne Cassar and my cousin and they were just leaving. Four of us. No other people went with us to that club that night.

Q. My question was ---

A. No-one was there.

Q. Were any of the people ---

A. None of them.

Q. Were any of the people within the couple of metres you have described of Mr. Burton and Kalache, members of a group that Mr. Kalache was a part of, at that hotel ---

A. No.

Q. --- that night. Do you know a person by the name of Ibrahim?

A. Yes, I do.

Q. Was the man you are thinking of as Ibrahim at the club that night?

A. Yes, he was.

Q. What is his full name?

A. Michael Ibrahim.

Q. Was Mr. Michael Ibrahim a person who left the hotel at a time close to when you had left the hotel on the occasion you are now telling their Honours about?

A. Yes.

Q. Did he come to within a distance of those couple of metres near Mr. Burton and Mr. Kalache?

A. I can’t remember.

Q. Is it the case that he may have, but you don’t know?

A. He may have.

Q. What did you see happen between Mr. Burton and Mr. Kalache in the area between, you have said they are between the trees, am I correct or not?

A. Yes, underneath the trees, between them.

Q. What distance was it at the shortest that you were to them? Do you understand what I mean by that question? How close did you get to them?

A. Oh, I’d say about within, I’d say within five metres.

DUNFORD J: Q. No closer?

A. No, no closer.

COUNSEL (INGRAM): Q. Was there anyone closer to Mr. Burton and Mr. Kalache, than you?

A. I can’t remember much from that night because I was on drugs back then and we both were, me and Hassan and --

Q. So Mr. Kalache was on drugs this night too, was he?

A. I’d assume he was.

Q. Was there anybody closer to Kalache and Mr. Burton than you were?

A. From what I can remember there was closer people than me.

Q. Closer than five metres to them?

A. Yeah.

Q. Did any ---

A. But these people weren’t associated with anyone, they were just sitting back on cars with girls and just kicking butt.

Q. They took no part, so far as you could see, in anything that was taking place between Mr. Burton and Mr. Kalache, is that what you mean by that answer?

A. Yes.

Q. What did you see happen, if anything, between Mr. Burton and Mr. Kalache?

A. I seen a punch thrown.

Q. Who threw it?

A. Jason threw a punch. Jason Burton threw a punch.

Q. Left or right hand?

A. I can’t remember.

Q. Did it strike?

A. I think it did because he had cuts on his hands.

Q. Where did it strike?

A. I can’t remember.

Q. Whom did it strike?

A. Hassan.

Q. That is Mr. Kalache?

A. Yes.

Q. What next happened after that?

A. From what I can remember could have wrestled around a bit.

Q. You say they could have wrestled around a bit?

A. Yes, could have been wrestling around or throwing a punch.

Q. Is that because you don’t remember?

A. Yes, because it was real dark.

Q. You couldn’t see what was really happening five metres away from you because it was so dark, is that what you are saying?

A. Yes, I didn’t think I couldn’t see much.

*******

COUNSEL (INGRAM): Q. Before you saw Mr. Burton throw the punch, did you see Mr. Kalache do anything to Mr. Burton?

A. No, not from what I can remember.

Q. Were you watching both of them at the time immediately before Mr. Burton threw the punch?

A. I was walking behind them and they looked like they were talking. It happened real quick, everything happened real quick.

Q. Is this the correct sequence; they are walking ahead of you towards the trees and you are walking some distance behind them?

A. Yes.

Q. You notice that they are apparently talking to one another as they approach the trees?

A. This is when they were under the trees, already there, yeah. Walking slowly, sort of, when they got underneath them, underneath the trees.

Q. During this time you are continuing to watch both Mr. Burton and Mr. Kalache?

A. I was watching everyone around.

Q. I was asking you, you were continuing to watch both Mr. Burton and Mr. Kalache, were you?

A. I was watching everyone around there.

Q. I will ask you another time. You were watching Mr. Burton and Mr. Kalache, were you?

A. You can say that.

Q. I’m asking you.

A. Yeah

Q. What does that mean?

A. Yes.

Q. And at the time you were watching them you saw, you say, Mr. Burton throw this punch?

A. Yes.

*******

“Q. After you saw the punch thrown by Mr. Burton, the two men Burton and Kalache began to wrestle with one another. Is that what you saw?

A. Yes, something like that.

Q. If it was not that, what was it?

A. It was dark and looks like they were wrestling. Just grabbing each other.

Q. Were they standing up?

A. Yes.

Q. What happened that you saw apart from wrestling?

A. That is it.

Q. How long did it go on for?

A. I don’t know.

Q. Did you continue to watch?

A. It happened real quick. There was nothing else to watch. I seen Jason ran up.

Q. Where?

A. Ran up to the club.

Q. Where did you(sic: he) go so far as you could see?

A. The club, inside the club

Q. Did he go back in through the door which you had just left there?

A. Yes, there was only one door.

Q. Did you see anything happen between the man Kalache and Mr. Burton involving a knife?

A. It was really dark. No.

Q. Was this wrestling taking place against a motor car?

A. Next to a car.

Q. How far from the car?

A. Maybe two metres, three metres.”

******

“Q. It was so dark you did not see Mr. Kalache stab him afterwards in the chest?

A. No I didn’t because there is no lights at all. Since then they have taken down the trees and put lights there. There is no lights at all and the trees are really big huge and there is no light at all. The only light that would have come was from the motel from across the road. That is about 30 metres away.”

******

“Q. What part or components of the body of Mr. Kalalche were you able to see while the wrestling was taking place?

A. They just moved around.

Q. What part of Mr. Kalache’s body were you able to see when the wrestling was on?

A. I cannot tell you. They were moving around. It may have been his front or his back. It happened real quick.

Q. Did you see his right hand?

A. His right hand?

Q. Yes.

A. I could have seen that.

Q. Did you see him stab Mr. Burton?

A. I never seen him stab him, like as I told you it happened real quick.

Q. Was there anything about Mr. Burton moving ahead of you as they were approaching the trees that in any way suggested to you he had already by then suffered two stab wounds? Was there anything about the way Mr. Burton moving ahead of you that suggested he had already been stabbed twice to the chest?

A. No.

Q. He moved easily from what you could see?

A. Yes.

Q. He was not crawling on the ground or stumbling?

A. No.

Q. Did you see anything happen between the time he left Mr. Kalache between the trees and raced back to the hotel that suggested that he might have been stabbed in that time?

A. When he was running back to the hotel.

Q. On his way back?

A. He had his hand on his chest.

Q. That suggested he had already been stabbed given what you now know, is that right?

A. Yes.

Q. It must have been Mr. Kalache, mustn’t it, is that a difficult question for you to answer?

A. No it is not.

Q. Please do so.

A. I have answered it about five times. You asked the same thing.

SULLY J: Just try the sixth time.

A. Yes, it could have been him.

Q. That was not the question. The question do you wish read?

A. It could have been

Q. On the version that you give, it must have been Mr. Kalache. That is the question put to you. But just tell us simply and clearly what your answer to that question is.

A. I would say again it could have been.

COUNSEL (INGRAM): Who else in the world could it have been?

A. If I didn’t see him stabbed, I didn’t see a knife in the hand, right, I cannot say he stabbed him.”

******

“Q. You were very concerned to distance yourself away from any trouble that had happened there that night involving anyone at all.

A. I did not throw a punch at anyone nor have an altercation with anyone on that night.

Q. From the time you saw Burton racing from the hotel and a short time later whenever that was, heard people say the words “He has been stabbed” or words that made it clear to you a person had been stabbed, from that moment on you wanted to make sure that you were not a part of any inquiries by the police in connection with that stabbing, didn’t you?

A. No.

Q. Why not?

A. Why not?

Q. Yes.

A. Why would I want to be part of the investigation?

Q. Why not? Is the question too hard to answer?

A. Because it is nothing to do with me.

Q. Why did you not want to be part of it if you had no part in the stabbing itself?

A. Why would I? Why would I? All right? If I had nothing to do.

SULLY J: Perhaps because you had been there and seen it happen?

A. I already said I never seen it happen. I never seen him put the knife in so there is no need, I did not want to be part of the investigation.”

17 As to the second matter, the appellant’s evidence was anything but precise. It seems to be his position that he knew very soon after the actual event that Mr. Burton had been stabbed; and that the source of that knowledge was an ensuing hubbub during which there were cries to the effect that Mr. Burton had been stabbed in the gardens outside the hotel.

18 As to the very important question of the timing of his knowledge, not only that there had been a stabbing, but also that Hassan Kalache had done it, the appellant’s evidence ebbed and flowed around the precise point. Once again, some extracts from his evidence will give a fair overall picture:

“DUNFORD J: I will ask a couple of questions and I will try and make it clear and simple. You told us earlier that it was only after Burton went back into the hotel that you became aware that he had been stabbed. Do you recall saying that?

A. Yes.

Q. Was that correct?

A. Yes that was correct.

Q. Well when was it that you first found out that it was Kalache that had stabbed him?

A. I can’t remember, it could have been back then.

Q. How did you find out that it was Kalache that had stabbed him?

A. He could have told me.

Q. Kalache would have told you?

A. Could have told me back then.

SULLY J: Did he?

A. I can’t remember. It has been a long time.

DUNFORD J: Did you travel home in the car after this incident with Kalache in the same car as Kalache?

A. Yes I did.

Q. Someone came to pick you up?

A. Well Sleiman my cousin is the one that picked us up there.

Q. He came and picked you up along with your wife and Mr. Kalache?

A. Yes that is right.

Q. On the way home in the car was there any talk about the stabbing?

A. No.

Q. None at all?

A. No.

Q. You knew that someone had been stabbed?

A. Yes.

Q. But you did not know at that stage he had died or was in the course of dying?

A. I knew he died next day.

Q. Did you know at the time you were travelling home in the car that he was at least in the course of dying?

A. No.

Q. But you were not concerned. You were not concerned whether he was in the course of dying. Were you wondering whether he was alive or dead?

A. I never thought of it.”

******

“COUNSEL: (INGRAM) Q. At the time you heard the words “He has been stabbed.”, did you seriously believe that somebody other than Mr. Kalache had stabbed Mr. Burton?

A. I did not know what I thought that night.

Q. As sure as night follows day, it is absolutely certain you knew that at the time?

A. I knew what?

A. That he stabbed Mr. Burton, that is Mr. Kalache stabbed Burton?

A. No I say.

Q. You do not know that as a fact?

A. Right there and then?

Q. Yes.

A. No I didn’t

Q. Why didn’t you ask?

A. Because it has nothing to do with me.

Q. You were in the same car with him, correct?

A. Yes.

Q. You were leaving the scene?

A. That is correct.

Q. You were leaving the scene with him, correct?

A. Yes.

Q. Your wife is next to you or near you in the car, correct?

A. Yes.

Q. For all you know one of the people in the car has just stabbed a man to death?

A. But maybe he did not want to tell me in front of the people in the car.

Q. Within five metres of you, correct?

A. Yes.

Q. And yet you did not stay to ensure that whatever is said or done at those premises clears you of any involvement in the stabbing, did you?

A. No. Had nothing to do with me.”

19 As to the third matter, also, the appellant’s evidence was imprecise. It was reasonably clear that the appellant’s position was that he had first heard in about June/July 2002, and after Hassan Kalache’s conviction and sentencing for the murder of Wassim Chedade, of Hassan Kalache’s confessing affidavit: T 76 (50). What was not, and is not, clear is how he explains not having done anything for so very long a time in the matter of disclosing his awareness that Hassan Kalache was, in truth, the person who stabbed Mr. Burton to death; and that he, the appellant, was in no way whatsoever implicated in that crime. All attempts to bring the appellant to this point were met by vague generalities. For example:

“Q. In the times, if he did, if he visited you after he was aquitted but before you were found guilty, did you ask him anything about whether he might be kind enough to give some evidence for you in your trial?

A. Did I ask him?

Q. Yes.

A. I don’t think so.

Q. Why not?

A. Why not?

Q. Yes, why not?

A. Um. Because I didn’t think he’d do it and --

Q. You didn’t know, did you?

A. Yeah, I didn’t know.

Q. Because you didn’t ask him?

A. I didn’t ask him, I didn’t want to ask him. I could have asked him like, after that.

Q. I’m not asking you about after that. I’m asking you about the time before you were convicted, why didn’t you ask him?

A. Before I was convicted?

Q. Yes, before you were convicted and after he was acquitted, why didn’t you ask him to give evidence for you?

A. I’m trying to get this right. Are you asking me, is this before he walked? Before he walked out? Like, during the time when both of us were on trial?

Q. I’ll make it more clear for you, okay? After he walked out, picture yourself back there in relation to the court that day. Remember the day he walked out?

A. Yes, I remember the day he walked out.

Q. *I suppose you thought: Gee, there goes the guilty man out the door now, didn’t you?

A. I remember from that day my QC said to me, that could have been me, that’s it.

SULLY J: What is the answer to counsel’s question?

A. Can you say it again?

QUESTION MARKED WITH AN * READ

SULLY J: What is the answer to that question, please?

A. I didn’t really think of it that way.

COUNSEL: (INGRAM) Q. Why not?

A. Um, I never thought of it. I was still on trial.

DUNFORD J: Did you think it was very unfair that he was walking while you were still on trial?

A. Yes, I did.

COUNSEL: (INGRAM) Q. What did you do about that?

A. I didn’t do nothing.

Q. Why not?

A. Um. Because I wasn’t in a position to do so.

Q. I beg your pardon?

A. I wasn’t in a position to do so.

Q. Up until that time had you said to anybody, “I didn’t do this. The man Hassan Kalache did this and I know that for a fact”?

A. No.

Q. Why not?

A. Because I’d get in trouble.

Q. I beg your pardon?

A. I’d get in trouble.

Q. Oh. From whom?

A. There’s a lot of people in gaol. If I talked or say something that’s out of school in gaol, I might end up in trouble.

Q. So you were afraid something might happen because you identified your nephew as the murderer, is that right?

A. Yes, yes.

Q. So you didn’t tell a single living soul about that, is that right?

A. Yep, I didn’t tell no-one. Some people came up to me.

Q. Were you afraid of your nephew at the time that he walked out the door of the court room in relation to this matter?

A. Was I afraid of him?

Q. Yes.

A. I was never afraid of him, not him specifically.

Q. Well, you must have been afraid of somebody else, were you?

A. Other people.

Q. Other people?

A. You don’t have to be related to them or even know them for something to happen if you talk.

Q. So you’re standing trial for murder in relation to a murder you didn’t commit, is that correct?

A. That is correct.

Q. You see the man who you know as a fact did murder the unfortunate deceased, is that correct?

A. That is correct.

Q. You watch him walk out the door a free man, is that correct?

A. That is correct.

Q. And because of some prospect that someone might one day get to you in the way you described, you say nothing to anybody?

A. I say nothing because --

Q. Is that right?

A. Yes.

Q. And then, quite by coincidence it would seem so far as you are concerned, two years or thereabouts later this same individual pops up and says, “Oh, by the way, I’d like to tell the truth now”. Is that your understanding of what has been happening?

A. I guess so.

SULLY J: Don’t guess, is that your understanding or not, of what has in fact happened?

A. Yeah, from what I’ve been told and what I’ve heard from my counsel, yes.

COUNSEL (INGRAM) Q. Because, of course, you had no idea that Mr. Kalache was going to step into the limelight at this late stage and provide you with a defence, did you?

A. No, I didn’t.

Q. Because you had never even asked him to, had you?

A. No, no, I don’t think so, no.

Q. Why not?

A. Why not?

Q. Yes, why not?

A. I never thought of it because I was real close with him, I grew up with him and --

Q. Trusted him?

A. Yeah, I trusted him.

Q. Loved him?

A. Yes.

Q. Felt like he was a close member of your family?

A. He is.

Q. Still is?

A. Yes.

Q. You know that as a fact, don’t you?

A. Well, I haven’t seen him for a while. I can’t turn against my own family.

Q. He did you, didn’t he?

A. He didn’t turn against me.

Q. He walked out of a court room knowing you were innocent, to face the music at the hands of a jury in relation to murder. Do you say he didn’t do anything against you?

A. Um, that was up to him. I couldn’t tell him to say it was him, I couldn’t tell him to say it wasn’t him.

COUNSEL (INGRAM): I didn’t ask you whether you could tell him to. I have so far only asked you if you asked him if he would and so far you have repeatedly told their Honours that you didn’t ask him?

SULLY J: He said “I don’t think so”. I don’t think so”.

COUNSEL (INGRAM): Q. Does that mean you asked him but you have now forgotten?

A. No, I never asked him.

Q. You never asked him?

A. No.

Q. During the course of the trial were you in cells beneath the court room?

A. Today?

Q. The trials involving the death of Mr. Burton?

A. We were together, yes.

Q. You knew as a fact that you didn’t kill Mr. Burton?

A. Yes.

Q. And you watched day after day as witness after witness was called in the Crown case, didn’t you?

A. Yes.

Q. And you saw the trial evidence being built up against you, didn’t you?

A. Yes.

Q. And you saw that the Crown case was that you were the person who had the knife, didn’t you?

A. The Crown case, yes.

Q. And you knew you didn’t, didn’t you?

A. Yes.

Q. Didn’t you at some stage say to Mr. Kalache, your nephew, “Will you please do something to help me, because I didn’t do this and you know I didn’t do this”. Did you ever do that?

A. No, I didn’t.

Q. Why not?

A. Because, I just didn’t.

SULLY J: But why didn’t you, was the question.

A. When I used to see my counsel all they had, all they ever told me was I would end up walking because the dying man’s words, all Burton’s last words were, “It was Kalache”. I wasn’t going to say anything because it might end up against me if I ended up in gaol, I don’t end up walking, like I did now and I might end up in gaol, I always thought I’d end up going home in trial because of dying man’s words, because of Jason Burton’s last words.

DUNFORD J: Did you tell your counsel, “I didn’t do it, I saw Kalache do it”?

A. No. My counsel asked me, because he asked me a couple of times, he told me, “Let me fight it on the dying man’s words and you’ll walk”, and I refused. I refused a couple of times.

Q. You refused what?

A. To let him use the evidence of Jason Burton against Kalache, in court.

Q. I’m sorry, say that again. You refused to let him --

A. He wanted to use that evidence against Kalache, the dying man’s words, and he said, he promised me if he used it that I would walk.

Q. But you sat through the trial and you saw that he did use it, didn’t you?

A. What was that?

Q. You sat through the trial and you saw that he did use the dying man’s words, didn’t he?

A. My QC?

Q. Yes. He relied on that very strongly, didn’t he?

A. No. We weren’t accusing him, in my case we were only accusing Kalache.

Q. You know that your QC in the trial relied very strongly on the dying man’s words, don’t you?

A. I don’t know, no, because I’ve never looked at the brief.

Q. You were there, you heard it. You heard it, didn’t you?

A. When they talk in court, when the counsel talks and that I don’t understand what they say.

Q. You heard him cross-examine Mr. Stacey about the dying man’s words were “Kalache”, didn’t you?

A. Yes, I did.

Q. You heard him in his final address to the jury tell the jury about the dying man’s words, “Kalache”, didn’t you?

A. Yes.

Q. So it is not true, is it? Is it correct to say that you refused to let your counsel use the dying man’s words?

A. He used them in the summing up, I think that is correct. I think he used them in the summing up, that was after Hassan Kalache went home.

Q. Is it correct that you refused to let your counsel use the dying man’s words?

A. Yes, when Kalache was there. I even wrote it down on a piece of paper and I signed it.

Q. But you say, do you, that you never told your barrister at any time that you didn’t do it, you saw Kalache do it?

A. No, I didn’t.

COUNSEL (INGRAM): Q. That was the most important piece of information you could have told anyone, wasn’t it?

A. Yes.

Q. And you have waited until today, have you, to say those words to somebody?

A. Um, I waited till he came out with it.”

20 In the next section of my present reasons I shall discuss the conclusions to which I have come about the evidence of the appellant.

· Hassan Kalache

21 As with the appellant, so also with Mr. Kalache, there were obvious matters to be explored.

22 The first was his version of the detail of the events surrounding the stabbing of Mr. Burton.

23 The second was his explanation of his having left his uncle to languish in prison for a period in the order of three years before coming forward to confess that he himself was the one and only guilty party.

24 The third, which was bound up with the second matter, was his knowledge that his own directed acquittal put him at once and for ever beyond the reach of further prosecution for the murder of Mr. Burton.

25 In his evidence-in-chief Mr. Kalache gave the following description of the lead-up to the stabbing of Mr. Burton:

“Q. You tell the Court what you know and remember, taking it slowly, about what happened to Mr. Burton that night?

A. Could you repeat that question?

SULLY J: I think it would be better if you were to lead it in segments from the witness.

COUNSEL (KINTOMINAS): Q. You are aware of the person I am talking about, Jason Burton?

A. Yes.

Q. Do you remember him in the hotel at any stage before he went outside?

A. Yep.

Q. Did you have anything to do with him in the hotel before he went outside?

A. Yep.

Q. Did you know him?

A. Before then, no.

Q. Do you know why he would know your name?

A. I don’t know why but we had an argument inside.

Q. Do you remember what the argument was about?

A. Not really.

Q. Did that argument involve anything more than words?

A. No.

Q. Did anyone hit anyone?

A. No.

Q. Did you have one argument or more than one argument?

A. No, just one.

Q. Do you remember Mr. Burton going outside?

A. Yep.

Q. Did you go outside?

A. Yep.

Q. Was that on purpose that you went out, because he went out, or was it a coincidence?

A. No, I asked him to come out.

Q. You asked him?

A. Yes.

Q. Did you walk with him?

A. Behind him.

Q. Where did you walk to?

A. Out the front of the hotel.

Q. Do you recall that there were some trees in the hotel that evening which were not there later?

A. No.

Q. If I mentioned trees to you, that does not assist you at all?

A. No.

Q. How far away from the entrance did you walk?

A. About eight metres.

Q. About?

A. Eight metres.

Q. When you say “about eight metres”, how far would you say it is from where you are to the officer in the blue shirt sitting directly opposite you?

A. About eight metres.

Q. Would that have been the distance that you walked?

A. Yes.

Q. Did you then have a conversation with Mr. Burton?

A. We had an argument, that is, words.

Q. What were you arguing about?

A. Something that happened inside.

Q. Can you recall what?

A. Eh?

Q. Do you remember what happened inside?

A. Yeah, he grabbed my girlfriend on the arse.

Q. He grabbed your girlfriend where?

A. On the arse.

Q. Are you saying “the heart”?

DUNFORD J: On the arse.

COUNSEL (KINTOMINAS): Q. Would you demonstrate on your body where you mean?

A. No I won’t.

SULLY J: He pinched her.

COUNSEL (KINTOMINAS): I am sorry, I was hearing a “t” not an “s”. I apologise Mr. Kalache.

Q. So you took exception to that, did you?

A. Yes.

Q. You took him outside?

A. Yep.

Q. And you had an argument with him?

A. Yep.

Q. How long did you argue for?

A. You know, just a couple of words, then something happened after that, we had a punch on that led --

Q. Who punched him?

A. Me and him, Jason Burton.

Q. Who punched you?

A. There was a scuffle, me and him.

Q. Did you punch him?

A. Yep.

Q. Did he punch you?

A. Yep.

Q. And then what happened?

A. I pulled the knife out and I stabbed him.

Q. Where did you keep this knife?

A. In my pants.

Q. At the time that you stabbed him were you aware of who may be watching?

A. No.

Q. After you stabbed him – how many times did you stab him?

A. Two times.

Q. Where did you stab him.

A. I can’t remember.

Q. Can you do your best?

A. No.

SULLY J: Can you give us any idea at all?

A. Somewhere in the chest.

Q. Can you be any more specific?

A. No.

DUNFORD J: Was it a downward movement, an upward movement, a sideways movement?

A. Side.

Q. Sideways?

A. Yes.

COUNSEL (KINTOMINAS): When you say sideways, does that apply to both times you stabbed him?

A. Yes.

Q. Why did you stab him?

A. I don’t know.

Q. You mean you do not know now or you did not know then?

A. I know why I done it then.

Q. Why did you do it then?

A. Because one thing led to another.

SULLY J: Please say that again – because one thing led to another?

A. Yeah.

COUNSEL: (KINTOMINAS) Q. After you stabbed him, what did you do with the knife?

A. I dumped it.

DUNFORD J Sorry?

A. I dumped it.

COUNSEL (KINTOMINAS): Q. Where did you dump it?

A. I can’t remember.

Q. Did it fall from your hand at any stage?

A. Yes.

Q. When?

A. At the same time.

Q. At the same time as when?

A. As when I stabbed him.

Q. What happened to it after it fell from the hand?

A. I picked it up.

Q. By the time you picked it up did you become aware as to who else may be looking at you, seeing what was happening?

A. No.

Q. Then what did you do?

A. Then we went in the car and took off.

Q. Who did you take off with?

A. A few – my friends.

Q. Can you tell us who?

A. No.

Q. Was Emad Sleiman with you?

A. No.

OBJECTION

SULLY J: Not on this topic, Mr. Kintominas.

COUNSEL (KINTOMINAS): Q. Can you tell me how many people were in the car?

A. Four of us.

Q. Was there any discussion with the people in the car about what had happened?

A. There was, but I can’t recall.

Q. Is that as a result of them asking you questions, or you telling them things?

A. They were asking me questions.”

26 As to the second and third matters, Mr. Kalache said that he tried, immediately after his acquittal, to tell his own then solicitor that he wished to give evidence in support of the present appellant. He did not say what exactly it was that he was able and willing to give in evidence; and he certainly did not disclose that his purpose was to confess to having been, himself, the one and only assailant.

27 Examining counsel took Mr. Kalache to various parts of his affidavit, the contents of which I have previously herein noted at paragraph 15. This gave rise to the following:

“Q. Perhaps you might be able to assist me. When you say “I have not been prepared in the past to give evidence about what occurred on the night of the murder”, how are you able to say that in view of the fact that you had asked to see Mr. Hill, I think it was, after you were found not guilty and had offered to help? Can you just explain how those two sit together?

A. No, I can’t.

Q. Well, is one of them wrong or are they both right?

A. I don’t know.

Q. You had told Mr. Kekatos that you had not been prepared in the past to give evidence?

A. That’s right.

Q. Did you understand, when you spoke to Mr. Hill, that the only practical way that you could assist Mr. Sleiman was to get into the witness box and give evidence and tell the jury that you were the one who had killed Mr. Burton?

A. Yep.

Q. Had you been prepared to go that far?

A. No.

Q. So what other way were you hoping to help Mr. Sleiman?

A. In that way.

Q. In which way?

A. To give evidence.

Q. You wanted to give evidence for him, but not tell the jury that you were the one who stabbed him?

A. Yeah.

Q. Was that last statement “I have come to the decision that the truth should be told”, was that true?

A. What was that?

Q. I withdraw that. When you said in your affidavit that you had not been prepared in the past to give evidence about what occurred on the night of the murder, but you had come to the decision that the truth should be told, what, if anything, made you change your mind and have a different attitude?

112 Mr Hassan Kalache gave evidence on the appeal. He described the journey home as follows: (T.83-84)

OBJECTION

SULLY J: Not on this topic, Mr Kintominas.

113 The evidence of Hassan Kalache could not be completed on the first day (6 November 2002). He was recalled when the matter resumed (17 February 2003). On that occasion he said this: (T.140-1)

114 His evidence continued: (T.141)

115 Mr Kalache was reminded of his earlier evidence (T.141). He acknowledged the inconsistency. The truth was that Emad Sleiman was in the car with him. Common sense would suggest that the stabbing was discussed, and discussed at length. The appellant, although denying that he discussed the issue with Hassan Kalache on the journey home, thought that he may have discussed it at some time.

116 The appellant chose at the trial to fight the case in a particular way. He said this: (T.36)

"A. When I used to see my counsel all they had, all they ever told me was I would end up walking because the dying man's words, all Burton's last words were, 'It was Kalache.' I wasn't going to say anything because it might end up against me if I ended up in gaol, I don't end up walking, like I did now and I might end up in gaol, I always thought I'd end up going home in trial because of dying man's words, because of Jason Burton's last words.

117 After Mr Kalache had been acquitted, the appellant moderated his instructions to a degree. He said this: (T.37)

118 One is left with the impression that the appellant gave no instructions at the trial as to what he knew of Hassan Kalache's role, what was said on the journey home, and the confession made by Kalache then or at some other time. It is unsurprising, therefore, that the view formed by Mr Hill, the solicitor for Mr Sleiman at the trial, was as follows: (T.193)

"Q. Did anything else come to your attention, apart from what Mr Kalache told you in the context of your affidavit, did anything else come to your attention which caused you to form the view that Hassan Kalache was a witness who might appropriately be called to give evidence in the trial to assist your client?

A. Well no, but you must bear in mind that I had another solicitor that instructed throughout the fair majority of Mr Sleiman's trial, Mr Stephen Dack."

119 Mr Hill was Mr Dack's master solicitor. He added: (T.193)

120 Before his directed acquittal, Hassan Kalache was an "associated defendant" for the purposes of s17(3) of the Evidence Act 1995 (the Act), being jointly tried with the appellant. As such he was not compellable. He ceased to be an associated defendant, and became compellable, once the trial against him had been completed. Accepting that the incident was discussed on the journey home, the representation by Hassan Kalache (that he had stabbed Jason Burton) was obviously made at a time that it was fresh in his memory. Evidence of that representation was admissible if Hassan Kalache had been, or was to be, called to give evidence (s66(2) of the Act). That Mr Sleiman did not provide those instructions to those defending him may suggest either that Hassan Kalache did not confess (and that because he had not stabbed Jason Burton), or that the appellant deliberately withheld that information from those representing him. Assuming the latter, being the inference most favourable to Mr Sleiman, there is an issue, to my mind, whether the proposed evidence of Hassan Kalache can be regarded as fresh evidence.

121 In Ratten v The Queen (supra) Barwick CJ made the following observation: (at 517)

"As Smith J rightly said in expressing the reasons of the Full Court in this case, 'Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence'. It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not. Consequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial."

122 The Chief Justice added: (at 517)

"It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial."

123 In determining this issue great latitude must be extended to an accused as to what evidence could, with reasonable diligence, in his own interests, have had available at the trial. Barwick CJ added: (at 517)

"But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial."

124 In Lawless v The Queen (supra) Mason J said much the same thing: (at 675)

"... in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence."

125 It is unnecessary to resolve this issue. Assuming the evidence of Hassan Kalache can be regarded "fresh evidence", has the appellant demonstrated that there has been a miscarriage of justice? (cf R v "PLV" (2001) 123 A Crim R 194, per Spigelman CJ at 205 para 71). There will be a miscarriage of justice where there is a significant possibility that a jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it (Mason CJ, Mickelberg v The Queen (1989) 167 CLR 259 at 273). The issue is whether the evidence is capable of belief and likely to be believed (Gibbs CJ in Gallagher v The Queen (1985) 160 CLR 392 at 396).

Is the Evidence Credible?

126 Emad Sleiman and Hassan Kalache are related. Mr Sleiman's sister is Mr Kalache's mother. They are the same age. They grew up together. They became friends. Mr Sleiman said he regarded Hassan Kalache as a close member of his family (T.35). Mr Kalache said the same thing (T.153). Hassan Kalache described their relationship in these terms: (T.167)

127 The appellant was convicted on 9 June 1999. He was sentenced on 27 August 1999. Hassan Kalache came forward on 6 June 2002, three years later. He did so, according to his affidavit, because he believed the truth should be told. His decision to come forward, and its timing, were, according to his evidence, unconnected with the sentence imposed upon him on 31 May 2002 for the murder of Wassim Chedade. At the time he saw Mr Kekatos (6 June 2002), he said that it was his belief that he could not be charged again with the murder of Jason Burton (T.115). He sought from Mr Kekatos, at their conference, an assurance that his belief was correct. Mr Kekatos gave that assurance.

128 Why, given the close relationship with the appellant, did Mr Kalache delay three years? Mr Kalache said this, in answer to Dunford J, referring to the affidavit prepared by Mr Kekatos in August 2002: (T.93)

129 No pressure had been put on him by the family. When cross examined, Mr Kalache said this: (T.115)

130 The delay was the more puzzling because Mr Kalache said that, whilst he and the appellant were awaiting trial, he gave the appellant an assurance that "if the worst comes to the worst" he would say that "I did it" (T.185). Mr Kalache was asked the following: (T.186)

131 Mr Kalache acknowledged that he had not mentioned it to Mr Sleiman's brother for a long time (T.186).

132 The delay in coming forward is the more striking because there was significant contact between the appellant and Hassan Kalache after Mr Kalache's directed acquittal. In the period between 7 May 1999 (when Mr Kalache was acquitted) and 9 June 1999 (when the appellant was convicted) Hassan Kalache visited the appellant on the following occasions:

9 May 1999

16 May 1999

27 May 1999

29 May 1999

133 The appellant having been found guilty on 9 June 1999, Hassan Kalache continued to visit him. The gaol records revealed the following visits:

10 June 1999

11 June 1999

17 June 1999

20 September 1999

27 September 1999

21 November 1999 (Lithgow)

27 November 1999 (Lithgow)

23 January 2000 (Lithgow)

29 April 2000 (Lithgow)

134 The Chedade murder was committed on 1 July 2000. Hassan Kalache was arrested shortly thereafter.

135 The delay in Hassan Kalache coming forward would be incomprehensible if he knew after his directed acquittal that he was safe from prosecution. On that issue, his evidence was unsatisfactory and contradictory. When first called (6 November 2002), Mr Kalache said this in answer to Sully J: (T.96)

136 The matter having resumed on 17 February 2003, Mr Kalache was cross examined. He gave the following evidence: (T.106)

137 Shortly thereafter, Mr Kalache withdrew that concession. He said that he must have misunderstood the questions. The issue was pursued by the Crown as follows: (T.107)

138 The account given by Mr Sleiman was no more plausible. He said this: (T.78-79)

139 The account provided by Hassan Kalache to Mr Kekatos on 6 June 2002 was bereft of detail, as was his account when he gave evidence. There was, moreover, ample opportunity for collaboration between the appellant and Hassan Kalache. On many occasions they were in the same institution, although not necessarily in direct contact with each other. They were both at the Silverwater gaol between 23 May 2002 and 1 June 2002, being the period during which Hassan Kalache summoned Mr Kekatos, and gave instructions to prepare the affidavit. Members of the extended family regularly visited each throughout.

140 The Crown filed an affidavit of Ms Catherine Williams, solicitor. It attached a chronology. The chronology identified the occasions upon which the matter was mentioned or listed before the Court of Criminal Appeal. There were many postponements. The reasons given by the solicitors for the appellant were recorded on each occasion. It is apparent from this and other material that the appellant explored a number of possible grounds of appeal. The appeal was periodically postponed on the appellant's application to enable his representatives to obtain further evidence or provide further advice. The matter, as mentioned, was listed for hearing before the Court of Criminal Appeal on 11 June 2002. Evidence which had led to a previous postponement (on an issue of identification) could not be procured. Counsel had advised that an additional ground which the appellant wished to press could not responsibly be pursued. It was in this context that Mr Kalache came forward, asking to see Mr Kekatos, stating on 6 June 2002 that he would be prepared to swear an affidavit that he stabbed Jason Burton. The Court of Criminal Appeal hearing was again put off until November 2002. That sequence may suggest a connection between Mr Sleiman's perception of his receding prospects on appeal, and the sudden appearance of Mr Kalache as a witness.

141 There is a further matter which emerged late in the hearing of the appeal. Mr Kekatos was called to give evidence after Mr Kalache. He said that he first received instructions from the appellant on 19 October 2000. He saw the appellant at Silverwater on 20 November 2000. He prepared a letter to Mr Kintominas of counsel on 29 November 2000. The letter listed possible appeal points. It included the following: (T.196)

142 That evidence is completely at odds with the evidence of Mr Kalache, as set out above. Nor does it sit comfortably with the evidence of the appellant. It makes the delay in Hassan Kalache swearing his affidavit even more odd.

143 The fresh evidence proposed by the appellant must be viewed in the context of the Crown case, as described by Sully J at para 6 (supra). That case included a recorded admission by the appellant to his then wife in these terms:

"The night, the night I stabbed that bastard to death."

144 In the context of that case, I do not believe that there is a significant possibility that a jury, acting reasonably, would have acquitted the appellant. I do not regard the evidence of Hassan Kalache as likely to be believed by a jury.

Ground 1

145 Ground 1 was in the following terms:

"1. His Honour misdirected the jury as to the dying declaration of the deceased."

146 The passage which is the subject of complaint is set out in the judgment of Sully J (supra, para 59). It is convenient to again recite certain familiar facts. The Security Manager of the hotel, Mr Stacey, cradled Jason Burton after he had re-entered the hotel, moments before he lost consciousness. Mr Stacey said: "Do you know who did this to you?" Jason Burton replied: "That wog cunt Kalache", whereupon his eyes began to roll back.

147 Particular complaint is made about the following remarks by his Honour:

"I pause here to say something about Mr Stacey's evidence that he asked Mr Burton who did it and that Mr Burton said 'that wog cunt Kalache'. Taken at its highest, this is evidence completely at odds with the Crown case that it was Mr Sleiman who stabbed Mr Burton. However, that is not the only construction which can be placed on that piece of evidence. Mr Burton was seriously injured; indeed he was dying. He was already losing consciousness at that stage. What Mr Stacey heard might have been the first half of a sentence. If that is so, one could only speculate as to what Mr Burton might have wanted to say Mr Kalache had done or what he might have wanted to say about Mr Sleiman.

Speculation of that kind is simply not permissible; or Mr Burton might have got the names of the two men confused; or he might have been so confused in his semi-conscious state that he really could have said anything."

148 From the viewpoint of the appellant, the dying declaration of Jason Burton was important evidence. If it was accurate, Mr Sleiman was entitled to an acquittal. Indeed, he was entitled to be acquitted even if it might be accurate. The appellant's complaint is that the effect of his Honour's commentary was to emasculate that evidence. The following was said in written submissions:

"13. His Honour erred in seeking to have the jury approach the dying declaration on the basis that it might be suspect. This subtly involved reversing the onus of proof. The appellant was entitled to rely on the dying declaration and it was for the Crown to prove to the jury's satisfaction that it could not be relied on. If the deceased had instead said that 'wog cunt Sleiman', it would have been seen as a piece of evidence almost conclusively demonstrating his guilt. The nomination of Kalache as the culprit should have been given the same weight by the jury as in any trial where the deceased makes a dying declaration that it was the accused who delivered the fatal blow."

149 However, I believe that submission overstates the position, and, indeed, demonstrates the problem with this evidence. The statement of Jason Burton was a representation that he had been stabbed by Hassan Kalache. It was a perception that he was in a position to make, and hence was firsthand hearsay (s62). Jason Burton was dead and therefore unavailable (s4(1)(a) Dictionary). The evidence was admissible as an exception to the hearsay rule (s65(2)(b) and (c)). Had the deceased said "that wog cunt Sleiman", counsel for Mr Sleiman could have requested a warning under s165(1)(a) that the evidence may be unreliable. The Judge, in that circumstance, would have been obliged to warn the jury that the statement may be unreliable (s165(2)(a)), informing the jury of the matters which may cause it to be unreliable (s165(2)(b), and urging the need for caution (s165(2)(c)).

150 Had Mr Sleiman been named, a judge would have been obliged to tell the jury that Mr Burton, in making his statement, was not under oath, and in that respect the statement was different from other evidence before them. The judge, nonetheless, might advert to the reason why such evidence has traditionally been received, namely that the circumstances were thought to be the equivalent of an oath. That is, as explained by Chief Baron Eyre in R v William Woodcock ((1789) 1 Leach 500; 168 ER 352):

"... they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice."

151 An important aspect of the warning would be that the accused has had no opportunity to cross examine the deceased. He therefore could not ask whether, before that evening, he had known Mr Sleiman or Mr Kalache. He could not explore whether he may have confused one for another, or may have been referring to someone else altogether. He could not, by questioning, explore whether the statement was incomplete, or whether he intended to add something (cf Cross on Evidence, 6th Ed., J D Heydon, para 33310 at page 937).

152 Here, the Crown did not request a warning under s165(2) as such, although the Crown did make the following comment at the time of the directed acquittal: (supra, para 57)

"CROWN PROSECUTOR: In my submission the jury should be told some very short reasons or short facts - I am not sure - it is a bit difficult, but in my submission because of that it is going to be left up in the air as to how that comes about, and something should be said about that."

153 His Honour, shortly after, made the following remark: (supra, para 57)

"First of all I really think it would be wrong at this stage for me to say anything, but I will bear in mind as to whether there might not be something that ought to be said in the course of the summing-up that avoids a wrong implication arising from the fact that Kalache was acquitted notwithstanding that evidence, so it is a matter you might like to raise at a later time Mr Crown.

154 His Honour was entitled to warn the jury to exercise caution when dealing with hearsay, although no request had been made by the Crown (s165(5)). A judge should hesitate to give a warning adverse to the accused in the absence of such a request (R v Salama [1999] NSWCCA 105, para 86). Where, as here, the evidence is exculpatory, it may be more appropriate to simply identify issues which the jury should address, rather than urge caution before accepting that evidence (cf R v Rose [2001] NSWSC 1060, Kirby J; R v Rose (2002) 55 NSWLR 701 per Wood CJ at CL and Howie J at 710-714; Smart AJ at 714-721). It was an important direction. It would have been useful had it been discussed with the parties before the summing up. Nonetheless, as framed, it did no more than identify issues which the jury should be aware of when dealing with hearsay (s165(1)(a)). Counsel for Mr Sleiman did not seek any redirection. I do not believe error has been demonstrated.

155 Counsel for the appellant further contended that his Honour should have given a number of specific directions. He said this:

"12. His Honour should have directed the jury in respect of the dying declaration, that unless they were persuaded by the rest of the evidence of the accused's guilt beyond reasonable doubt so as to negate any reasonable possibility that the deceased had believed that Kalache and not the appellant had caused his death, they should acquit the appellant."

156 I do not believe a direction in those terms would have been appropriate. What the Crown was required to negate was any reasonable possibility that Jason Burton was stabbed by someone other than the appellant, including by Hassan Kalache. Experienced counsel did not seek such a direction. The summing up as a whole conveyed that requirement in any event.

157 Further, counsel for the appellant urged a direction in the following terms: (written submissions para 14)

"... a specific direction reinforcing the submission made by the defence counsel to the effect that if there was any reasonable possibility in the jury's mind that it was Kalache who had stabbed the deceased, then they were not to be deterred from acting on that reasonable possibility and acquitting the appellant by the fact that the judge had directed them to find Kalache not guilty."

158 Such a direction may have been appropriate, and useful, had it been requested. However, no such request was made. I would apply Rule 4.

159 For these reasons, I believe that the appropriate order is that the appeal against conviction should be dismissed.

Reg v Emad Sleiman

CHRONOLOGY

18 May 1997 Date of murder of Jason Burton

8 January 1998 Emad Sleiman and Hassan Kalache arrested and charged with murder of Jason Burton

22 March 1999 Arraignment of Sleiman, Kalache & Cassar

31 March 1999 New trial started after first one aborted

7 April 1999 Contempt of court charge against Sleiman

7 May 1999 Verdict of acquittal by direction in relation to Kalache

9 June 1999 Sleiman verdict of guilty to murder

27 August 1999 Sleiman sentenced

2 September 1999 Date notice of appeal filed

13 December 1999 CCA call-over – Ross Hill appears on behalf of appellant. Matter has just been assigned.

21 February 2000 CCA call-over – Ross Hill appears

17 April 2000 CCA call-over – Nayall of Ross Hill & Assoc. appears. Paul Byrne SC has been briefed.

22 May 2000 CCA call-over – Mr. Nayall appears

19 June 2000 CCA call-over – No appearance on behalf of appellant

10 July 2000 CCA call-over – No appearance on behalf of appellant. Ross Hill no longer acting

24 July 2000 CCA call-over – No appearance. Bouzanis & Kekatos now solicitors on record.

14 August 2000 CCA call-over – P. Kintominas appears. He is awaiting material to make advice.

9 October 2000 CCA call-over – No appearance on behalf of appellant.

30 October 2000 CCA call-over – No appearance on behalf of appellant.

27 November 2000 CCA call-over – Mr. Kintominas appears. Brief delivered but parts of summing up missing.

19 February 2001 CCA call-over – Mr. Skoudos for Kintominas – Hearing date set for 29 May 2001. Registrar orders AWS due 28.4.01. CWS due 4.5.01

23 April 2001 CCA call-over – Mr. Kintominas. Extension of one week for filing subs due now 30 April 2001. Hearing date confirmed.

21 May 2001 CCA call-over – Mr. Kintominas makes application for adjournment on basis that affidavit prepared but not witnessed. 29 May hearing date vacated. Any affidavit and amended grounds to be filed by 15.6.01.

18 June 2001 CCA call-over – Mr. Skoudas appears – no grounds – problems with preparation.

23 July 2001 CCA call-over – No appearance on behalf of appellant. Grounds of appeal to be filed by 24.8.01

27 August 2001 CCA call-over – Mr. Skoudas appears. Grounds of appeal to be filed by 21.9.01.

24 September 2001 CCA call-over – Mr. Kintominas appears. Hearing date set for 6 November 2001. Affidavits and amended grounds by 5.10.01. AWS due 12.10. CWS due 26.10. Two conventional grounds of appeal to be added. Fresh evidence/Accused not give evidence.

15 October 2001 CCA call-over – Mr. Packer appears. No new grounds or submissions forthcoming.

18 October 2001 CCA call-over – Mr. Kintominas appears. Amended grounds one ground – affidavit by Crown witness alleging undue police influence – need affidavit to put on ground. Kintominas wants stood over one week to confirm but Crown will not have time to respond to fresh evidence so hearing date of 6 November had to be vacated. Registrar states matter not to be listed until all material filed.

26 November 2001 CCA call-over – Mr. Kintominas appears – still not completed paper-work.

4 February 2002 CCA call-over – Mr. Kintominas appears. Grounds to be filed by 1.3. Registrar cautions may go to a special call-over to show cause if not ready.

4 March 2002 CCA call-over – Mr. Kintominas appears and indicates that he needs to look at video in relation to main ground.

18 March 2002 CCA call-over – Mr. Kintominas appears – will contact Crown to view video.

8 April 2002 CCA call-over – Mr. Kintominas appears. Amended grounds of appeal and written submissions filed in the CCA Registry. Hearing date of 11 June 2001 set.

7 June 2002 Hearing date of 11 June 2002 vacated on application of appellant on basis that Kalache had contacted his instructing solicitor and has expressed a desire to make an affidavit claiming that it was he who stabbed the victim and not Sleiman

17 June 2002 CCA call-over – No appearance on behalf of appellant.

8 July 2002 CCA call-over – Mr. Kintominas appears. He is trying to obtain affidavit from Kalache and further AWS. Affidavit to be filed by 2.8.

5 August 2002 CCA call-over – Mr. Kintominas appears. Affidavit to be filed by 23 August 2002

21 August 2002 Date affidavit of Hassan Kalache sworn at Goulburn.

26 August 2002 CCA call-over – Mr. Kintominas appears. Listed for hearing on 6 November 2002. AWS. stat. dec. and amended grounds by 27 September. CWS due 25 October.

21 October 2002 Appellant’s written submissions filed.

**********

Last Modified: 08/28/2003

Actions

Download as PDF Download as Word Document

Citations

R v Sleiman [2003] NSWCCA 231

Most Recent Citation

R v LTP [2004] NSWCCA 109

Cases Citing This Decision

10

Ohl v Tasmania [2021] TASCCA 1

DJK v Tasmania [2017] TASCCA 17

Mehajer v The King [2024] NSWCCA 226

Cases Cited

10

Statutory Material Cited

1

Gallagher v The Queen [1986] HCA 26

R v Bikic [2002] NSWCCA 227

Mickelberg v The Queen [1989] HCA 35

CITATION:	Regina v Emad Sleiman [2003] NSWCCA 231
HEARING DATE(S):	6/11/02;2/12/02;17/2/03;18/2/03;19/2/03
JUDGMENT DATE:	21 August 2003
JUDGMENT OF:	Sully J at 1; Dunford J at 91; Kirby J at 92
DECISION:	Appeal against conviction dismissed.
LEGISLATION CITED:	Evidence Act 1995 (NSW)
CASES CITED:	Mickelberg v The Queen (1989) 167 CLR 259 at 273 R v PLV (2001) 123 A Crim R 194 R v Bikic [2002] NSWCCA 227 Gilbert v The Queen [2000] CLR 414 McClean v Commonwealth of Australia, unreported, 27 June 1996 Regina v M [2002] NSWCCA 66 Ratten v The Queen (1974) 131 CLR 510 Lawless v The Queen (1979) 142 CLR 659 Gallagher v The Queen (1985) 160 CLR 392 R v William Woodcock (1789) 1 Leach 500; 168 ER 352 R v Salama [1999] NSWCCA 105 R v Rose (2002) 55 NSWLR 701
PARTIES :	Regina Emad Sleiman
FILE NUMBER(S):	CCA 60505/99
COUNSEL:	P. G. Ingram - Crown P. Kintominas - Appellant
SOLICITORS:	S. E. O'Connor - Crown Kekatos Lawyers - Appellant

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70216/98
LOWER COURT JUDICIAL OFFICER :	Sperling J